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<br />f' 0 '"I f>-..~? <br />U. .10'w <br /> <br />958 <br /> <br />ECOLOGY LAW QUARTERLY <br /> <br />[Vol. 28:903 <br /> <br />Colorado River.333 Four endangered fish species (the Colorado <br />squawfish, the humpback chub, the bonytail chub and the <br />razorback sucker), as well as four endangered bird species (the <br />brown pelican, the bald eagle, the peregrine falcon, and the <br />Southwestern willow . flycatcher), are either residents or <br />transients in the area.334 While the MSCP was intended to <br />provide a forum within which the ESA concerns on the Lower <br />Colorado could be peaceably resolved, environmental groups <br />ended their participation when BOR refused to consider impacts <br />on the Delta in the MSCP process.335 <br />In June 2000, these groups challenged BOR's justification <br />for not considering the Delta in the MSCP process by filing <br />Defenders of Wildlife v. Babbitt.336 The suit claims that BOR, Fish <br />and Wildlife Service (FWS) , National Marine Fisheries Service <br />(NMFS) , and the Department of Commerce violated ~ 7 of the <br />ESA because they failed to consider the effects of their actions on <br />endangered species in the United States and in Mexico that <br />depend on the Colorado River and the Delta for critical habitat.337 <br />These species include ones that currently exist . only in Mexico, <br />including the totoaba, a species of fish, and the vaquita, a. small <br />porpoise that is perhaps the most endangered marine mammal <br />in the world. 338 <br /> <br />333. See Lower Colorado Multi-Species Conservation Program, supra note 319. <br />The environmental organizations included Defenders of Wildlife, the Center for <br />Biological Diversity, Environmental Defense Fund, and American Rivers. See Notice <br />of Violations of the Endangered Species Act Relating to Lower Colorado River <br />Activities, Letter from Bill Snape et al. to Bruce Babbitt et al. (Dec. 14, 1999). <br />334. See Defenders of Wildlife v. Norton, No. 1:00CV01544, 45 (D.D.C. filed June <br />28, 2000). <br />335. See Regional: Defenders of Wildlife. Others File 60-Day Endangered Species <br />Act Notice Challenging Operation of Lower Colorado River, 4 W. WATER L. & POL'y REp. <br />98 (Feb. 2000). <br />336. See Defenders, supra note 334. The case name has since been changed to <br />Defenders of Wildlife v. Norton (following the change in administration). <br />337. rd. 'll 1. In recent years, the ESA has become a potent force in changing water <br />rights in the West. The ESA authorizes the SecretaIy of the Interior to list a species <br />as threatened or endangered based on a number of factors. Once a species is listed, <br />the SecretaIy has a duty to designate critical habitat that is necessaiy for that <br />species' survival. 16 D.S.C. ~ 1533. Under ~ 7 of the ESA, each federal agency must <br />ensure that "any action authorized, funded, or carried out by such agency. . . is not <br />likely to jeopardize the continued existence" of a listed species nor "result in the <br />destruction or adverse modification of habitat of such species. . .." 16 U.S.C. ~ <br />1536(a)(2). The agency determines whether its action is likely to have such <br />consequences by "consulting" with either FWS or NMFS, depending on the species <br />involved. 50 C.F.R. ~ 402.01(b). Section 8 of the ESA provides that the Secretary <br />"shall" encourage foreign countries to conserve critical species and to encourage "the <br />entering into of bilateral or multilateral agreements with foreign countries to provide <br />for such conservation." 16 U.S.C. ~ 1537. <br />338. See Defenders, supra note 334, 'll'll 46, 52. <br />